People v Gibson
Annotate this CaseDecided on June 20, 2006
Buffalo City Court
The People of the State of New York, Plaintiff,
against
Brandon Gibson, Defendant.
ER003185F
E. Jeanette Ogden, J.
Defendant was charged with violation of Penal Law 220.03 (Criminal Possession of a Controlled Substance, 7th degree), 195.05 (Obstructing Governmental Administration), 205.30 (Resisting Arrest) and 120.05-03 (Assault, 2nd degree) which was later reduced to 120.00-1 (Assault, 3rd degree).
A suppression hearing held on May 22, 2006 revealed that on February 26, 2006, Detectives Edward Nieman and Patrick Judge were on Gittere Street in the City of Buffalo, New York between 8:00 and 9:00 p.m. in an unmarked police vehicle. Having received a tip from a confidential informant that a Black male wearing a leather coat "with patches" would be exiting 18 Gittere Street and would have cocaine on his person, the detectives surveilled the residence. Detective Nieman had worked with this informant for about 10 years, and the information provided in the past had proven reliable. While parked at the south end of the street, the detectives observed defendant, wearing a black, cloth coat "with patches", exit 18 Gittere Street and walk north. Detective Nieman radioed his Lieutenant, who was at the north end of Gittere Street, pulled alongside defendant and got out of the vehicle to approach him. According to the officer, they identified themselves as police as they exited their vehicle, and informed defendant they wished to speak with him. Defendant attempted to flee, slipped and fell and a scuffle ensued during which Detective Nieman sustained an injury. Subsequent to the scuffle, defendant was placed under arrest, thoroughly searched, and placed in the back seat of the police vehicle. Detective Judge found crack cocaine on the back seat of the police car where defendant was sitting.
The issue to be resolved herein is whether the tip from the confidential informant was sufficient to justify the ensuing police conduct. This court finds that it was not. While Detective Nieman testified as to the informant's reliability, there was no testimony elicited of the reliability of the specific information provided. This issue was addressed by the Court of Appeals in People v. Elwell, 50 NY2d 231, wherein it held that the fact that the informant has demonstrated general reliability in the past "... is no index of the reliability of specific information he passes on; he may have received it from a totally unreliable source. It follows that when the basis of the informant's knowledge is not given, personal police observation corroborative of data received from the informant should be regarded as sufficient only when the police observe facts suggestive of criminal activity." In People v. DeFalco, 80 NY2d 693, the Court held that the informant's tip [*2]may also, in a proper case, be corroborated through details provided by the informant, if the details "... are sufficient in number and suggestive of or directly related to criminal activities."
In the instant case, either the informant's tip would have to be so detailed that it would have been obvious that the information was first hand, or the detectives would have had to observe something indicative of criminality in the defendant's actions. While they observed someone fitting the general description provided by the informant, and wearing a coat similar to that described, the officer's observation of defendant walking out of the subject premises and down the street is not sufficient to suggest criminal activity. Nor was the tip sufficiently detailed to be self-corroborating (see, People v. Dukes, 245 AD2d 1052).
Consequently, there was not a sufficient predicate for anything beyond a common-law approach for information (see People v. DeBour, 40 NY2d 210) to which the defendant would not have been legally obligated to respond. In fact, defendant's act of attempting to flee was well within his right under these circumstances, and the detectives had no right to pursue him (see, People v. Howard, 50 NY2d 583; People v. Holmes, 81 NY2d 1056).
There being no attenuating circumstances to purge the taint of the unlawful conduct, this court grants suppression of the fruits thereof.
In accordance herewith, it is hereby
ORDERED, that the motion to suppress is granted in its entirety.
DATED: June 20, 2006_________________________
E. Jeannette Ogden, BCCJ
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